Subpoena, Privilege, and HIV Information in a Divorce Record
Dr. Brooks is a Georgia psychologist in private practice. He receives a subpoena duces tecum in a client’s divorce case. The client, Ms. Lane, is an adult who has been in therapy for two years for depression and HIV-related stigma. Her record includes her HIV diagnosis, medication adherence, statements about her husband, and information about a former partner. The subpoena was issued by the clerk of court at the husband’s attorney’s request; no client authorization and no judge’s order accompany it. Ms. Lane left a voicemail: “Please don’t send anything.” The attorney says the records are “relevant to custody” and threatens a motion to compel. Dr. Brooks wonders whether he must produce the record, whether he can redact, and what to do about the HIV information.
1. How should Dr. Brooks respond to the subpoena?
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He should not produce the record on the subpoena alone. A clerk-issued subpoena is legal process, but it does not automatically override the psychotherapist-patient privilege. Ms. Lane has objected, and Dr. Brooks should assert privilege on her behalf unless she gives informed written authorization or a judge orders disclosure after reviewing the privilege issue. He should notify Ms. Lane and her attorney, preserve the record, and respond to the requesting attorney in writing that he will comply only with a valid authorization or court order.
If the attorney files a motion to compel, Dr. Brooks should participate and ask the court to review the records in camera before ordering production. He should not ignore the subpoena, because that can lead to contempt, but he also should not treat it as a court order. The response should be timely, documented, and limited. He may need to consult his own attorney or malpractice carrier.
2. If a court orders some production, how should Dr. Brooks handle redaction and the HIV information?
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He should read the order narrowly and produce only what the judge requires. The record likely contains material about third parties, including the former partner, and information not relevant to the divorce or custody issues. Dr. Brooks should redact third-party identifiers and unrelated treatment details unless the order specifically requires them. He should keep an unredacted copy and a redaction log explaining each category withheld.
HIV information is highly sensitive and protected by Georgia confidentiality law in addition to the psychotherapist-patient privilege. Dr. Brooks should not release HIV-related information unless the court order specifically authorizes it or a valid authorization permits it. Even then, he should disclose only the minimum necessary. He should ask the court to place the records under seal and limit their use. If the order is ambiguous about HIV information, he should seek clarification before producing anything.
3. What should Dr. Brooks document and communicate to Ms. Lane?
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He should document receipt of the subpoena, the absence of authorization, Ms. Lane’s voicemail objection, his privilege assertion, all communications with the attorney and Ms. Lane, any consultation with counsel, and every item produced or withheld. If he files an objection or motion, he should keep copies. The record should show that he did not ignore lawful process and that he protected the client’s privilege.
He should communicate clearly with Ms. Lane: explain that he received a subpoena, that he has not released records, that she should consult her divorce attorney immediately, and that she may need to seek a protective order. He should explain the difference between a subpoena and a court order and what will happen next. He should avoid legal advice beyond explaining his own response process. If she authorizes release, he should obtain a specific, informed written authorization and confirm the scope before producing anything.